Citation Nr: 9824861
Decision Date: 08/18/98 Archive Date: 07/27/01
DOCKET NO. 94-08 806 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to an increased rating for chronic bronchitis
with bronchiectasis, bilateral, pulmonary fibrosis and
emphysema, currently assigned a 30 percent evaluation.
2. Entitlement to service connection for a psychiatric
disorder, claimed secondary service-connected pulmonary
disability.
3. Entitlement to service connection for diabetes mellitus,
claimed secondary to service-connected pulmonary disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Hudson, Counsel
INTRODUCTION
The veteran had active service from March 1954 to March 1956,
and from March to December 1960.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from regional office (RO) rating decisions
of March 1993 and August 1994. The case was previously
remanded in June 1996.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that due to his service-
connected lung disability, he is on oxygen, fatigues easily,
has limited mobility, and a constant cough. In addition, he
is in receipt of Social Security disability. He also states
that due to his lung disability, he has become depressed.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file(s). Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the evidence supports the
grant of a 60 percent rating for chronic bronchitis with
bronchiectasis, bilateral, pulmonary fibrosis and emphysema,
and that the veteran has not submitted evidence of a well-
grounded claim for service connection for a psychiatric
disorder and diabetes mellitus.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's claim has been obtained by the
originating agency.
2. Chronic bronchitis with bronchiectasis, bilateral,
pulmonary fibrosis and emphysema, is manifested by pulmonary
function test results showing FEV-1 of 43 percent of
predicted, FEV-1/FVC was 104 percent of predicted, single
breath diffusion of 54 percent of predicted, without cor
pulmonale, right ventricular hypertrophy, pulmonary
hypertension, episode(s) of acute respiratory failure, or
outpatient oxygen therapy.
3. There is no competent evidence that a psychiatric
disability, if present, is etiologically related to service,
or to service-connected chronic bronchitis with
bronchiectasis, bilateral, pulmonary fibrosis and emphysema.
4. There is no competent evidence that diabetes mellitus is
etiologically related to any events which occurred in
service.
5. There is no competent evidence that the veteran was
prescribed prednisone as treatment for chronic bronchitis
with bronchiectasis, bilateral, pulmonary fibrosis and
emphysema, either in service or thereafter.
CONCLUSIONS OF LAW
1. The schedular criteria for a 60 percent evaluation for
chronic bronchitis with bronchiectasis, bilateral, pulmonary
fibrosis and emphysema have been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.96, Part 4,
Code 6600-6601 (1997).
2. The veteran has not submitted evidence of a well-grounded
claim for service connection for a psychiatric disability or
diabetes mellitus. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. INCREASED RATING
The appellant's contentions regarding the increase in
severity of his disability constitutes a plausible or well-
grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629
(1992). The relevant facts have been properly developed,
and, accordingly, the statutory obligation of the Department
of Veterans Affairs (VA) to assist in the development of the
appellant's claim has been satisfied. 38 U.S.C.A. § 5107(a)
(West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1991).
Disability evaluations are based upon the average impairment
of earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
Part 4 (1997). Separate rating codes identify the various
disabilities. 38 C.F.R. Part 4 (1997). Regulations also
provide that each disability be viewed, and medical reports
pertaining thereto be interpreted, in light of the whole
recorded history, and that each disability be considered from
the point of view of the veteran working or seeking work.
38 C.F.R. §§ 4.1, 4.2 and 4.10 (1997). Nevertheless, the
present level of disability is of primary concern, and the
past medical reports do not have precedence over current
findings. Francisco v. Brown, 7 Vet.App. 55 (1994).
The veteran was hospitalized in service in December 1955 for
treatment of bronchiectasis with bilateral involvement, and
he was discharged from service due to this disability. In
April 1956, he was granted service connection for
bronchiectasis, assigned a 30 percent rating. In March 1961,
a VA examination did not find bronchiectasis, and diagnosed
chronic, moderate, recurrent bronchitis. As a result of this
examination, his disability was recharacterized as
bronchitis, and his evaluation was reduced to 10 percent. He
was hospitalized for observation and evaluation from May to
June 1964. X-rays revealed bilateral apical fibrosis with
emphysematous changes. In addition, bronchograms were
interpreted as showing bilateral mild cylindrical
bronchiectasis and chronic bronchitis. Based on this
evidence, by rating action dated in June 1964, his disability
was redefined as chronic bronchitis with bronchiectasis,
pulmonary fibrosis and emphysema. In addition, his rating
was increased to 30 percent.
In September 1993, a VA examination was conducted, which
diagnosed chronic bronchitis with chronic obstructive
pulmonary disease, mild to moderate. It was reported that
pulmonary function tests had revealed mild to moderate
ventilatory impairment with volume loss. Unfortunately, the
actual pulmonary function test results were not included. In
March 1994, the veteran underwent another VA examination
which included pulmonary function tests that were interpreted
as showing severe restrictive ventilatory impairment. Again,
however, the actual pulmonary function test results were not
available for review.
Accordingly, in October 1997, the veteran again underwent a
VA examination, although, again, there were some inconsistent
results reported. On the examination, the veteran's main
complaint was dyspnea on exertion. However, the examiner
concluded that the veteran did not have active bronchitis,
bronchiectasis, or pulmonary fibrosis, and that his dyspnea
was most likely due to coronary artery disease, hypertension,
obesity, or deconditioning, and less likely from lung
impairment. Nevertheless, pulmonary function tests,
performed in August 1997, documented pulmonary impairment.
Interestingly, the claims file contains two separate copies
of the pulmonary function test results, one copy which
includes an interpretation of moderate ventilatory
impairment, while the other report contains an interpretation
of severe obstructive ventilatory impairment.
Effective October 7, 1996, the portion of the rating schedule
pertaining to the evaluation of respiratory system impairment
was revised. Where a law or regulation changes after a claim
has been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version most
favorable to an appellant applies (unless otherwise
provided). Karnas v. Derwinski, 1 Vet.App. 308 (1991). In
view of the inconsistencies in the interpretations of the
findings, as well as the examining physician's conclusion
that the veteran's dyspnea on exertion was most likely
unrelated to lung impairment, the revised regulations are
clearly more favorable to the veteran. In this regard, the
revised criteria place substantial emphasis on the results of
pulmonary function testing. Since the results of pulmonary
function testing, conducted in August 1997, were constant
despite varying interpretations, the new criteria also appear
to provide the most accurate assessment of his pulmonary
impairment.
The revised regulations provide for bronchiectasis to be
rated on the basis of the number and duration of
incapacitating episodes, requiring bedrest and treatment by a
physician, or on the basis of pulmonary impairment as chronic
bronchitis. 38 C.F.R. Part 4, Code 6602 (1997).
Additionally, under both the new and old criteria, ratings
for coexisting respiratory conditions will not be combined
with each other; a single rating will be assigned under the
diagnostic code which reflects the predominant disability
with elevation to the next higher evaluation where the
severity of the overall disability warrants such elevation.
38 C.F.R. § 4.96(a) (1997). Consequently, since
incapacitating episodes have not been demonstrated, and the
rating formula for chronic bronchitis is the same as for
emphysema, also part of the service-connected disability
picture, the criteria for chronic bronchitis provide the most
accurate and comprehensive parameters for evaluating the
veteran's disability.
Bronchial asthma with FEV-1 of 71 to 80 percent predicted,
or; the ratio of Forced Expiratory Volume in one second to
Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or:
Diffusion Capacity of the Lung for Carbon Monoxide by the
Single Breath Method (DLCO (SB)) 66 to 80 percent predicted,
warrants a 10 percent rating. FEV-1 of 56 to 70 percent
predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB)
56 to 65 percent predicted warrants a 30 percent rating.
FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to
55 percent, or; DLCO (SB) 40 to 55 percent, or; maximum
oxygen consumption of 15 to 20 ml/kg/min (with
cardiorespiratory limit), warrants a 60 percent rating.
38 C.F.R. Part 4, Code 6600 (1997).
For FEV-1 less than 40 percent of predicted value, or; FEV-
1/FVC less than 40 percent, or; DLCO (SB) less than 40-
percent predicted, or; maximum exercise capacity less than 15
ml/ kg/min oxygen consumption (with cardiac or respiratory
limitation), or; cor pulmonale (right heart failure), or;
right ventricular hypertrophy, or; pulmonary hypertension
(shown by Echo or cardiac catheterization), or; episode(s) of
acute respiratory failure, or; requires outpatient oxygen
therapy, a 100 percent rating is warranted. Id.
The August 1997 pulmonary function tests, which found the
veteran's compliance and cooperation to be good, revealed
FEV-1 of 43 percent of predicted. Although FEV-1/FVC was 104
percent of predicted, single breath diffusion was 54 percent
of predicted. Thus, two of the three findings obtained on
that examination which are contained in the new criteria are
reflective of a 60 percent evaluation. Moreover, the
criteria were expressly made alternative rather than
cumulative. Further, where there is a question as to which
of two evaluations to apply, and the disability picture more
nearly approximates the criteria required for the next higher
rating, the higher rating will be assigned. 38 C.F.R. § 4.7
(1997). Accordingly, a 60 percent evaluation is warranted.
See 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski,
1 Vet.App. 49, 55 (1990).
However, a rating in excess of 60 percent is not warranted.
None of his pulmonary function test results showed greater
incapacity than the criteria contemplated for a 60 percent
rating. Additionally, the medical records do not show cor
pulmonale right ventricular hypertrophy, pulmonary
hypertension, or episodes of acute respiratory failure.
Moreover, although the veteran states that he is "on
oxygen," neither the treatment records nor the examination
reports reflect outpatient oxygen therapy. Consequently, the
preponderance of the evidence is against an evaluation in
excess of 60 percent.
The United States Court of Veterans Appeals (Court) has held
that the Board is precluded by regulation from assigned an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance. Floyd v. Brown, 9 Vet.App. 88 (1996). The
Court has further held that the Board must address referral
under 38 C.F.R. § 3.322(b)(1) only where circumstances are
presented which the Director of the VA's Compensation and
Pension Service might consider exceptional or unusual.
Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). Having
reviewed the record with these mandates in mind, the Board
finds no basis for further action on this question.
II. SERVICE CONNECTION
The threshold question to be answered with respect to these
issues are whether the veteran has met his initial obligation
of submitting evidence of a well-grounded claim; that is, one
which is plausible. 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet.App. 78 (1990). In general, a well-grounded
claim for service connection requires competent evidence of
(1) current disability; (2) incurrence or aggravation of a
disease or injury in service; and (3) a nexus between the in-
service injury or disease and the current disability. Cohen
v. Brown, 10 Vet. App. 128, 136 (1997); Caluza v. Brown, 7
Vet.App. 498, 506 (1995). In this case, the veteran claims
that he developed the disabilities secondary to his service-
connected pulmonary disability. Disability which is
proximately due to or the result of a service-connected
disease or injury shall be service connected. 38 C.F.R.
§ 3.310 (1997). A well-grounded claim for service connection
on a secondary basis requires competent evidence, generally
medical, of current disability, and of a nexus between
current disability and a service-connected disability. See
Cohen, Caluza.
A. Psychiatric disability
He believes that the general impairment in his health
resulting from his lung condition has caused depression.
Service medical records do not show any psychiatric
complaints. In addition, although a psychiatric examination
in October 1989 resulted in a diagnosis of panic disorder
with generalized anxiety, a VA psychiatric examination in
March 1994 concluded that although the veteran described
recurrent nightmares, he did not have symptoms which appeared
to be consistent with a significant psychiatric disorder.
More importantly, there is no medical evidence linking the
onset or severity of any psychiatric disorder to the service-
connected chronic bronchitis with bronchiectasis, bilateral,
pulmonary fibrosis and emphysema. The veteran's assertions
of medical causation are not probative because lay persons
(i.e., persons without medical expertise) are not competent
to offer medical opinions. Moray v. Brown, 5 Vet.App. 211
(1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). Consequently, the claim is
not well-grounded.
Accordingly, since we have determined that the claim is not
well-grounded, there is no duty to assist the appellant in
any further development of his claim, including additional or
more detailed examinations. Rabideau v. Derwinski, 2
Vet.App. 141 (1992), Murphy v. Derwinski, 1 Vet.App. 78
(1990). Further, the Board views the record sufficient to
inform the veteran of the elements necessary to complete his
application, pursuant to 38 U.S.C.A. § 5103(a), and the
veteran has not referred to the existence of any potentially
relevant evidence which the VA has either obtained or
attempted to obtain. Robinette v. Brown, 8 Vet.App. 69
(1995).
B. Diabetes mellitus
Regarding the claim for service connection for diabetes
mellitus, the veteran claims that he was prescribed
prednisone for the treatment of his service-connected chronic
bronchitis with bronchiectasis, bilateral, pulmonary fibrosis
and emphysema, and that he developed diabetes mellitus as a
result. Thus, for this claim to be well-grounded, there must
be (1) current evidence of diabetes mellitus, (2) competent
evidence that prednisone caused the diabetes, and (3)
competent evidence that prednisone was used to treat a
service-connected disability.
The record shows that diabetes mellitus was initially
diagnosed in June 1989, in the course of a hospitalization
following a myocardial infarction. Treatment for this
disease has continued to be treated for the disease since
that time; currently, his diabetes mellitus has progressed to
the insulin-dependent type. Thus, current disability is
shown. Regarding the second element, on a VA examination
report of March 1994, the examiner stated that it was hard to
provide an opinion as to an association between his
medication and his disorders, since he had not brought his
medications with him. Although the examiner concluded that
there was no association between the lung condition and
diabetes mellitus, she also noted that "[t]here has been an
association of taking Prednisone and development of diabetes
mellitus." Whether a cautious or inconclusive medical
statement provides a medical nexus, or is too speculative to
well ground a claim, depends on the full context of the
evidence. Lee v. Brown, 10 Vet. App. 336, 339 (1997). We
observe that in this case, the examiner stopped short of
stating that the veteran's diabetes mellitus was caused by
prednisone, in part due to the absence of evidence of the
veteran's treatment with prednisone.
Assuming, however, for the purpose of this discussion, that
the physician's statement could provide the nexus
requirement, there must also be competent evidence that
prednisone was used to treat a service-connected disability.
In his substantive appeal dated in August 1993, the veteran
stated that he was currently taking prednisone for his lung
disability. In addition, in the course of the VA examination
in March 1994, the veteran claimed that he had been treated
with prednisone for his service-connected lung disability
from 1955 until the present time and that he was currently
being treated with prednisone. In view of the veteran's
mention of this potentially relevant evidence, the remand in
June 1996 directed the veteran to provide documentation of
all of his treatment for prednisone. See Robinette v. Brown,
8 Vet.App. 69 (1995). In response, he submitted statements
in August 1996 and February 1997, in which he identified
facilities that he claimed dispensed or prescribed prednisone
from 1954 to 1960. He stated that he had earlier provided
records of his medication through 1970. The majority of the
facilities identified were military facilities, during the
time the veteran was on active duty. Additional service
medical records were requested by the RO, and his service
medical records on file were reviewed, but the numerous
records of treatment for his lung disability do not show that
prednisone was administered or prescribed. The VA was unable
to locate any of the non-military records identified by the
veteran, as was the veteran himself. We note that the
veteran, although asked to provide all records of treatment
with prednisone, did not specifically identify any treatment
subsequent to 1960.
In general, for the purpose of determining whether a claim is
well grounded, evidence is presumed to be credible. Cohen,
at 136. However, the matter must relate to an area in which
the veteran is competent to testify. Where the determinative
issue involves medical etiology or medical diagnosis, only
medical evidence is considered "competent." Cohen, at 137;
Grottveit v. Brown, 5 Vet.App. 91 (1993). "Competent"
evidence may be lay evidence in circumstances in which the
determinative issue does not require medical expertise, such
as the occurrence of an injury or the recounting of symptoms.
Cohen, at 137; Heuer v. Brown, 7 Vet.App. 379 (1995).
However, a veteran is not competent to report what a doctor
has told him. See Robinette v. Brown, 8 Vet.App. 69 (1995)
("the connection between the layman's account, filtered as it
was through a layman's sensibilities, of what a doctor
purportedly said is simply too attenuated and inherently
unreliable to constitute 'medical' evidence"). Accordingly,
while the veteran is competent to state that he was treated
with prednisone, a simple report of what he can observe from
the label, he is not competent to link the prednisone
treatment to a specific disability. This additional step
requires medical expertise, which the veteran cannot provide
by relating what was told to him by a doctor.
In this case, as discussed above, both the VA and the veteran
have been unable to locate any medical evidence confirming
that the veteran was treated with prednisone for his service-
connected lung disability. Records identified by the veteran
were either unavailable, or did not reflect such treatment.
The veteran has complained about the infeasibility of
locating records dated many years ago, but we must point out
that although he claimed, in 1993 and 1994, that he was
currently taking prednisone for his lung condition, he did
not provide any evidence of, or reference to, that more
recent treatment when requested to do so in connection with
the remand development. Further, the extensive medical
records on file do not show that prednisone was administered
as treatment for a lung disability. Thus, in the absence of
competent evidence that prednisone was used to treat a
service-connected disability, the claim is not well-grounded.
Accordingly, since we have determined that the claim is not
well-grounded, there is no duty to assist the appellant in
any further development of his claim. Rabideau v.
Derwinski, 2 Vet.App. 141 (1992), Murphy v. Derwinski, 1
Vet.App. 78 (1990). Further, the record is sufficient to
inform the veteran of the elements necessary to complete his
application, pursuant to 38 U.S.C.A. § 5103(a), and the VA
has either obtained or attempted to obtain all potentially
relevant evidence identified by the veteran. Robinette v.
Brown, 8 Vet.App. 69 (1995).
ORDER
A 60 percent evaluation for chronic bronchitis with
bronchiectasis, bilateral, pulmonary fibrosis and emphysema
is granted, subject to the criteria governing the payment of
monetary benefits.
Service connection for a psychiatric disorder is denied.
Service connection for diabetes mellitus is denied.
JEFF MARTIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.